Law Column: Should S39 orders mean lifelong anonymity?

I don’t think many of us would dispute that section 39 orders, made under the Children and Young Persons Act 1933, have their place. It has long been established that the S.39 order is a discretionary order that prevents identification of children or young persons concerned in proceedings.

However, it has also long been established that whilst the S.39 order can survive the end of the relevant proceedings, it ceases to apply upon the child or young person reaching the age of 18 – this is now being challenged in the High Court.

Two teenagers, one of whom is already 18, and the other will turn 18 this week, are seeking judicial review of a decision that their right to anonymity in relation to criminal proceedings ends on their 18th birthdays. Both teenagers have already received community orders.

The widely accepted rationale behind the S.39 order is that children and young persons should be given the chance to rehabilitate themselves and put their past behind them. Counsel for the two teenagers argues that there is therefore no reason why the S.39 order should cease when the young person reaches the age of 18. Instead, the argument is that the order should exist indefinitely, or until a further order is made.

Whilst S.39 itself doesn’t explicitly specify when the order ceases, the wording refers to a child or young person, and therefore the section doesn’t apply once the person in question reaches 18 and is no longer a child or young person.

So, why should the position change now? The answer, in my opinion, is that it shouldn’t.

Unlike under S.49 of the Children and Young Persons Act 1933, the S.39 order is not automatic, and should only be imposed when there is a good reason for doing so. In imposing the order, a judge is expected to balance the interests of the public in receiving a full account of proceedings, with the interests of the child or young person. The usual requirements that any order is necessary, proportionate, and that there is a pressing social need, must also be satisfied.

When deciding whether to impose a S.39 order, or whether one should continue, a judge is obliged to give considerable weight to the age of the young person and the potential damage that being identified as a criminal could do prior to having the advantage of adulthood – with the rationale being that upon reaching adulthood, the person in question should be better equipped to deal with their past convictions in the public eye.

The problem with young persons automatically being given indefinite anonymity under a S.39 order is that such a move has serious implications for Article 10 (European Convention on Human Rights) rights, inhibiting the media’s freedom of expression significantly, without any real justification for the extra erosion.

Whilst it is evident that there can be the need for those who have committed crimes when they are young to receive lifelong anonymity, these cases are very few and far between. In such circumstances, the High Court has the ability to make special orders using its inherent powers, and there is a strong argument that the giving of lifelong anonymity to those convicted as children or young persons should be reserved for such cases and not be granted on a day to day basis by courts of first instance.

As yet, it is unclear when a decision will be made in relation to the application for judicial review. However, what is clear is that granting lifelong anonymity to young persons under S.39 will set a dangerous precedent that significantly erodes the media’s freedom of expression.

Some media organisations are expected to object strongly to the application.

5 comments

A well argued piece. I do hope Foot Anstey will be able to draw on the same arguments should, heaven forfend, they find themselves being called upon to defend an editor summoned before magistrates to answer a charge of contempt of court in relation to an alleged breach of a section 39 order….

This is indeed a very well argued piece, and one which should ring alarm bells throughout the industry. Perhaps newsrooms should be searching their collective memories and archives now to see if they can pinpoint cases where they can finally fully report a case they were unable to at the time.
Get in while you can, so to speak.
So often, of course, s39s are made on victims or witnesses which effectively serve only to protect the defendant and keep his/her name out of the public domain because of the relationship. I’d be interested in Sam’s view on this dilemma because there are some Code issues to be considered. Should the industry ethically identify a s39 victim who has turned 18, so that in turn, we can identify a defendant who couldn’t be named at the time?

Thirty years ago I ignored a s39 order made by magistrates – the child victim was dead. An hour after the hearing the town’s coroner opened an inquest without making any identity or age comment/order. There was no come-back from the magistrates after I told the clerk of the court, privately, that I intended to publish name – and I did.

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